240-Day Rule For Employment Authorization For Certain Nonimmigrants With Pending Extension of Stay Applications

240-day extension

 

Introduction

The United States Citizenship and Immigration Services (USCIS) often experiences delays in processing adjudicating applications. For this reason, the regulations provide for a 240-day extension of employment authorization for certain classes of nonimmigrant work visa holders on whose behalf a timely extension of stay petition has been filed. All of the classes covered are nonimmigrant visa categories that provide employment authorization incident to status — meaning without the need for a separate application for employment authorization. As we will examine, the extension only allows for employment with the same employer and under the same conditions and limitations noted in the initial application. The main regulation is found in 8 C.F.R. 274a.13(b)(20). In this article, we will examine the regulations and related issues involving the 240-day extension provision.

Text of the Regulation

The regulation providing for the 240-day rule, 8 C.F.R. 274a.13(b)(20), reads as follows:

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Classes of Nonimmigrants Covered

Before examining how the 240-day rule works, it is important to understand which classes of nonimmigrants are covered. 8 C.F.R. 274a.13(b)(20) lists aliens within classes described in 8 C.F.R. 274a.13(b)(2), (5), (8), (9), (10), (11), (12), (13), (14), (16), (19), (23), and (25). We will set forth these classes of aliens below:

(b)(2) — A3 employee of a foreign government official;
(b)(5) — E1 treaty trader or E2 treaty investor (principal only);
(b)(8) — G5 personal employee of an official representative of an international organization;
(b)(9) — H1, H2A, H2B, or H3 nonimmigrant;
(b)(10) — I information or media representative (principal only);
(b)(11) — J1 exchange visitor;
(b)(12) — L1 intra-company transferee;
(b)(13) — O1 or O2 alien of extraordinary ability/achievement or accompanying alien;
(b)(14) — P1, P2, or P3 athlete, artist, or entertainer;
(b)(16) — R religious worker;
(b)(19) — TN NAFTA professional;
(b)(23) — CW1 Commonwealth of the Northern Mariana Islands Transitional Worker; and
(b)(25) — E3 specialty occupation worker.

It is worth noting that on January 15, 2016, the Department of Homeland Security (DHS) published a final rule titled “Enhancing Opportunities for H1B1, CW1, and E3 Nonimmigrants and EB1 Immigrants,” which added the H1B1, CW1, and E3 nonimmigrant categories to the list of those covered by the 240-day rule [81 FR 2068]. These three categories had to be added “[b]ecause Congress created the E-3, H-1B1, and CW-1 nonimmigrant classifications after 8 CFR 274a.12(b)(2) was effective…” See 81 FR 2070.

All of the above categories are employment-authorized incident to status. That means that a nonimmigrant in one of the categories is eligible for employment based on his or her status and therefore does not need to apply for separate employment authorization. However, each of these categories only permits certain employment for employers approved in the application process.

It is important to note that the 240-day rule does not apply to the derivative of any of the nonimmigrants described above who may have separate employment authorization.

Overview of the 240-Day Rule

In order for the 240-day rule to apply, the following conditions must be met:

The alien must be a nonimmigrant within a specified class of nonimmigrant aliens ([see section] above for list);
The alien's status must be expired; and
The alien must have had a timely filed application for an extension of stay filed on his or her behalf.

The provisions for extension of stay applications for all of the covered categories, with the exception of TN nonimmigrants, are found in 8 C.F.R. 214.2. The provisions for extensions of stay for TN nonimmigrants are found in 8 C.F.R. 214.6.

In short, the 240-day rule permits certain nonimmigrant work visa holders to continue working in the United States after the expiration of the authorized period of stay so long as a timely filed extension of stay petition was filed on their behalf but is still pending. The regulation explains that the 240 day period begins “on the date of the expiration of the authorized period of stay.”

However, it is important to note the limitations of the 240-day extension. First, the regulation makes clear that “[t]hese aliens are authorized to continue employment with the same employer…” (emphasis added). This requirement means that the 240-day rule does not apply in cases where the extension application is filed in conjunction with a change in employer. It also does not apply in cases where the alien is seeking to change nonimmigrant status. Furthermore, the regulation stipulates that “[s]uch authorization shall be subject to any conditions and limitations noted on the initial authorization.” This means, for example, that an L1 nonimmigrant working under the 240-day rule is limited to the employment that he or she was authorized to engage in and is otherwise bound by the terms and conditions of his or her status.

The 240-day extension is valid until either the extension of stay application is adjudicated or 240 days from the expiration of the alien's authorized period of stay, whichever transpires first. The USCIS explained how the different scenarios work in May 2017 guide titled “1 C1-I am a nonimmigrant…How do I extend my nonimmigrant stay in the United States?” [see M-579B]:

If the extension of stay application is approved, approval will relate back to the date of the expiration of the Form I-94 and the alien's status during the 240-day extension period will be considered to have been lawful;
If the extension of the stay application is denied, the alien will be required to immediately cease employment and depart the United States immediately (unless he or she has a separate basis for lawfully remaining, e.g., TPS); or
If the USCIS has still not made a final decision regarding the extension request, the alien will no longer be authorized for employment [see section]

The USCIS has taken the position that an alien benefitting from the 240-day rule is out of status. However, an alien working under the 240-day rule does not accrue unlawful presence [see article]. See M-579B.

Employment Not Authorized Beyond 240 Days

If an extension of stay petition remains pending 240 days after the expiration of the alien's authorized period of stay, he or she will no longer be authorized to engage in employment. In certain categories, extension petitions may remain pending for this duration due to processing delays. Accordingly, petitioners should generally file extension petitions as soon as possible under the regulations for the nonimmigrant category in question.

On April 21, 2016, the USCIS announced that petitioners who filed a Form I-129, Petition for Nonimmigrant Worker, for extension of status may submit an inquiry after the petition has been pending for 210 days or more [PDF version]. Note that these 210 days are counted from the filing of the Form I-129 rather than from the expiration of the beneficiary's period of stay. Although outside of the scope of this article, it is worth noting that a petitioner may also submit an inquiry for a Form I-129 that has been pending 210 days or more that was filed in connection with a request for change of employer. Please see our full article to learn more about this guidance [see article].

A petitioner and beneficiary should consult with an experienced immigration attorney for case-specific guidance. This is especially important for a beneficiary who is close to hitting the 240-day limit.

It is worth noting, however, that extension applications for A3, E1, E2, E3, and G5 nonimmigrants are filed on the Form I-539, Application to Extend/Change Nonimmigrant Status.

Annotating the Form I-9 for 240-Day Rule

Chapter 7.7 of the Handbook for Employers M-274 [PDF version] provides guidance on how to annotate the Form I-9 to indicate that an employee is authorized for employment under the 240-day rule. The Handbook for Employers explains that an employer should “write '240 day Ext.' and the date [the] Form I-129 was submitted to USCIS in the Additional Information box in Section 2.” Remember that the employer does not need to file a separate employment authorization application for purpose of the 240-day rule.

For the employee portion of the Form I-9, the employee “may update Section 1 by crossing out the expiration date of [his or her] employment authorization noted in the attestation. The employee may write in the new date that the automatic extension of employment authorization ends and initial and date this update in the margin in Section 1.”

Discussion of 240-day Rule in the Nov. 18, 2016 AC21 Rule

On November 18, 2017, the DHS published a comprehensive new rule creating numerous regulations relating to AC21, titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” [see article] [81 FR 82398]. Although the rule did not alter the 240-day rule, it did discuss how it related to provisions of the new AC21 rules in the comments.

At 82 FR 82440, the DHS distinguished the H1B portability provision from the 240-day rule. It explained that the statutory provision for H1B portability at section 214(n)(1) of the Immigration and Nationality Act (INA) “plainly refers to new employment in describing what type of employment is authorized…” Accordingly, when a petition for an extension of the same H1B employment with the same H1B employer is pending, the 240-day rule found in 8 C.F.R. 274a.12(b)(20) would apply instead of the H1B portability rules. Please see our full article on H1B portability to learn more [see article].

The AC21 rule provided for automatic 180-day extensions of certain EADs under specified circumstances [see article]. At 82 FR 82459, the DHS explained why it did not provide for a 240-day extension in these cases like it did for certain nonimmigrant work visa-holders. Discussing the classes of nonimmigrants covered by the 240-day rule, the DHS stated: “These classes of nonimmigrants are employment authorized for a specific employer incident to status. Because the adjudication of a Form I-765 application [for an EAD] is materially different from the application of petitions seeking extensions of stay in these nonimmigrant classifications, the 240-day time frame afforded to those nonimmigrants is inapposite.”

Conclusion

The 240-day rule provides relief from USCIS processing delays in adjudicating extension petitions for many classes of nonimmigrant work visa categories. However, in order to benefit from the 240-day rule, the petitioner must timely file a non-frivolous extension request and the alien must continue to follow the rules of his or her status. A petitioner and alien are well advised to consult with an experienced immigration attorney for guidance regarding extension requests and USCIS processing delays, especially when it appears that an application may remain pending beyond the alien's 240-day employment authorization extension.

To learn more about the nonimmigrant work visa categories that benefit from the 240-day rule, please see our website's section on work visas [see article].